1820319 (Migration)

1820319 (Migration) [2020] AATA 3954 (1 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1820319
1820444
1820461
1820457
1820451
MEMBER:Denis Dragovic
DATE:1 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Subclass 200 (Refugee) visas of the five applicants.

Statement made on 1 July 2020 at 2:30pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – incorrect information in the visa application – holding Lebanese citizenship – access to naturalisation – Lebanese family civil status record – individual cancellations – Department’s prior knowledge of the applicant’s Lebanese citizenship – torture – discrimination against Syrians in Lebanon – withdrawal of nationality from prescribed Syrians – family and education commitments in Australia – support services – contributions to the community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 2 cls 200.211, 200.212, 200.222; r 2.41
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the Subclass 200 (Refugee) visas of the five named applicants under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visas on the basis that the first, second and third named applicants hold Lebanese citizenship while the fourth and fifth have a right to naturalisation none of which was declared at the time of application yet was material to the granting of the visas. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visas should be cancelled.
It is important to review the reason why this case is not being considered as a single case but instead as five separate decisions albeit on one Tribunal decision record.
On 10 September 2015, the first named applicant applied for a Protection XB 200 visa as the main applicant of his family group, which included his dependents as detailed on the Department’s Integrated Client Services Environment (ICSE) Offspring permission request screen. This is the Department’s database containing the records and status of visa applicants who have made applications to an offshore post. Upon review of this entry it appears that one application was made for the family. With the first named applicant as the primary applicant and the others as members of the family unit.
The family was granted XB 200 visas on 22 April 2016. The ICSE Offspring database shows that the first named applicant was granted the visa as the main applicant, with the rest of the family members as dependent applicants.
When the visas were cancelled, each applicant received a separate decision record with individual cancellation IDs for each of the applicants though the evidence of incorrect information being provided appeared to be copied from one to another and centre on the application form and the evidence given by the first named applicant at the interview in the Australian Embassy in Beirut.
The Tribunal requested the Department provide the visa grant notices for each of the applicants to assess the basis of the visa being granted. None were provided because according to the response received, ‘it appears there were some dissimilarities with the current normal practices, and this was the reason the visa grant notices do not exist.’[1]
[1] Email correspondence between the Department of Home Affairs and the AAT dated [in] June 2020
Based upon the evidence before the Tribunal it appears that an administrative decision occurred at some stage of the cancellation process without a clear reason. Rather than cancelling the primary applicant under s.109 and the other visas automatically as a consequence of that cancellation by force of operation of s.140(1) of the Act stemming from the second through fifth named applicants’ visas being granted as dependants to the first named applicant, the Department cancelled each applicant individually.
One option would be for the Tribunal to rectify the matter by combining the applications. But the Tribunal is only able to combine visa refusal applications not visa cancellation applications. There are wide reaching consequences of this. For the applicants this has meant paying five application fees instead of one, a difference of several thousand dollars. But relevant to this review, it means that each applicant’s case turns on their individual merits rather than solely of the primary applicant.
This leads to an artificial situation of discussing the provision of incorrect information when it wasn’t provided by an applicant and clearly could not have been. For example, the fifth named applicant was not only [age] years old at the time of the application but is legally blind and has an intellectual disability. One option would be to determine that the s.107 notices of intention to consider cancellation were not valid based upon these issues. While it could be a correct approach, I do not find that this would be the preferable decision nor would it be favourable for the applicants who would incur further financial costs and delays.
For these reasons I have decided to proceed in reviewing each application on its own merits, but I have decided to combine the decisions to make some sense of their collective situation. As such any evidence I have taken that was provided by one applicant I take to be evidence submitted in all applicant’s cases.
With the consent of the representative the applicants appeared together before the Tribunal on 10 June and 24 June 2020 to give evidence and present arguments. The applicants attended the premises of their representative joining the member in the hearing by video using Microsoft Teams. At the outset the applicants confirmed that the rooms were quiet and private. The connection quality throughout the hearing was adequate. The hearing was conducted according to the guidelines of the Special Measures Practice Direction of 29 April 2020.
The Tribunal also received oral evidence from [Mr A], the husband of the fourth named applicant. For communication with the first and second named applicants the hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. For the third and fourth named applicants the hearing was conducted in English.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicants’ visas should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). Section 101 states:
Section 101: Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered, and
(b) no incorrect answers are given or provided
Section 101 refers to the incorrect information being given on the application form. The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning: ‘in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of s.46 allow to be used for making the application’.
The applicants applied for humanitarian visas on the 10 September 2015 with the second named applicant as the primary applicant and the remaining family as secondary applicants. As a part of this process the application recorded all of the applicants as holding Syrian citizenship. In addition, under the question of whether any person included in the application had ever applied for an Australian visa the ‘no’ box was ticked. The first four named applicants signed the application declaring it to be ‘complete, correct and up-to-date in every detail.’ ([file number])
[In] February 2016 during the interview the applicants requested that the primary applicant on the visa be changed to the first named applicant.
At this interview the first, third and fourth named applicants were present. The second and fifth waited outside. The first named applicant was asked and answered the following questions:
What nationality are you? ‘Syrian’
Do you or your spouse have a right to live, a passport or visa that allows you to live in any other country apart from Syria? ‘No’
What nationality are your parents? ‘Syrian’
Do they hold any other nationality? ‘No’
The first named applicant was also asked about the nationality of his wife. There is no record that the second named applicant was asked any questions. It is recorded that the third and fourth named were interviewed but they were not asked about their citizenship status. On the 2 April 2016 the family were granted an offshore humanitarian visa (subclass 200).
According to the notice of the intention to consider cancellation, [in] September 2016 the Lebanese General Security Office provided information of the first named applicant’s expired Lebanese passport. Further information was received including additional correspondence with the General Security Office of Lebanon, Lebanese passport details and Family Civil Status Record. The family civil status record included details of all five family members. Country information notes that a family civil registry record is a form of evidence of Lebanese citizenship.[2]
[2] Guide for Descendants of Lebanese Origin To Claim the Lebanese Nationality, Issued by the Consulate General of Lebanon in Melbourne, 2018 >
Based upon information that suggests the entire family held Lebanese citizenship the Department initiated the cancellation process. The above information was appropriately particularised for the circumstances of all applicants in the section 107 notices of intention to consider cancellation. The s.107 notices were sent to the applicants on the 5 September 2017.
In considering whether there are grounds for cancellation I have taken into consideration all of the submissions and prior decisions by the Department.
Are the grounds for cancellation met?
First named applicant
In a statutory declaration dated 27 September 2017 the first named applicant confirmed that he, his wife and eldest son were granted Lebanese citizenship [in] 1995: ‘[Applicant 2], [Applicant 3] and I were granted Lebanese citizenship [in] 1995 by naturalisation under the 1994 decree.’ I repeated this passage to the applicant at hearing and he responded that it is correct.
The applicant had added in the statutory declaration that his two other children are Lebanese citizens by birth as he was a citizen at the time of their birth. But the applicant argued that he and his children did not have full citizenship rights.
He explained his withholding of information from the Australian government as arising in part from his hurried departure from Syria in 2013 because of the deteriorating security situation. He claimed that they left without any of the Lebanese documents as not all of the family had Lebanese passports. As a result of the haste they didn’t plan well and so they only carried with them Syrian passports. The applicant admitted that the family had agreed not to mention their Lebanese citizenship during the Embassy interview (Statutory declaration at [46]).
Second named applicant
The second named applicant wrote in a statutory declaration dated 20 December 2017, ‘[The primary applicant] and I applied for Lebanese citizenship for ourselves and [Applicant 3] in 1995…Apart from this Lebanese citizenship the only other tie I have to Lebanon is that my sister lives there.’ I put this to the applicant at the hearing and she responded that this was correct.
Third named applicant
The third named applicant, in a statutory declaration dated 20^th December 2017 under the heading ‘Previous non-disclosure of my family’s Lebanese citizenship’, explained why he had withheld information about his citizenship (at [22]). At the hearing he explained, that a few days before the interview at the Australian Embassy in Beirut as they were reviewing the application, they found that their Lebanese citizenship had not been declared but decided to proceed without correcting the information.
Fourth named applicant
The fourth named applicant wrote in a statutory declaration dated 20^th December 2017, ‘I am a citizen of Syria and Lebanon. Although I am Lebanese by birth because I got my Lebanese citizenship because my father got it under the 1994’ at [5].
Fifth named applicant
The fifth named applicant did not write a statutory declaration, was not interviewed [in] February 2016 in Beirut and did not sign the application form. Nevertheless, that the applicant’s parents provided the information on her behalf as a minor is relevant in so far as according to s.100 of the Act, ‘an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.’
Considering that each of the first four named applicants have individually admitted to having Lebanese citizenship and for the fifth this information was provided by her guardians I find that there was non-compliance with s101(b) by the applicants in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the first four named applicants under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·the correct information
·the content of the genuine document (if any)
·whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·the circumstances in which the non-compliance occurred
·the present circumstances of the visa holder
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·any other instances of non-compliance by the visa holder known to the Minister
·the time that has elapsed since the non-compliance
·any breaches of the law since the non-compliance and the seriousness of those breaches
·any contribution made by the holder to the community.
The Tribunal’s considerations
The correct information
The correct information is that the applicants have both Syrian and Lebanese citizenship as opposed to only Syrian citizenship. This is an important difference and as such I place substantial weight in favour of cancelling the applicants’ visas.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
I have considered the representative’s submission dated 7 December 2017 in which the case was made that the Department had prior knowledge of the applicant’s Lebanese citizenship and despite this prior knowledge the visa was still granted.
There is a case note in the ISCE system from [February] 2016 which states:
Movements records on file confirm that [the primary applicant] ([date of birth]) went to Australia as a Visitor in 1998 and 1999. Please call PA to clarify his statement at interview that he did not travel to Australia.
I reviewed a copy of the movement record as was available to the Department at the time. The movement record included the applicant’s ID document as being ‘Lebanon’ as well as country of birth as Lebanon. As such the Department had information of the applicant’s Lebanese citizenship as early as [February] 2016.
In an internal Departmental background report on this case it is noted, ‘The case has been discussed with the LE case officer who summarised the case. She has advised that they assumed it was just a case of suspected errors – that errors were made in recording client details in 1998 and that Lebanon was recorded for COB [country of birth] for some Syrian cases due to force of habit.’ (Dept [file number] f.9b)
The Department recorded that they confirmed the first named applicant’s travel to Australia with the applicant in a phone conversation [later in] February. [This later] February case note reads:
contacted PA to clarify his movements to Australia. he stated that he travelled to Australia on a visitor visa between 1998 and 1999 with his brother in-law to attend an [event] and visit his wife's uncles. he went for 3 months and extended for 3 more months then he returned to Syria (he doesn't remember the specific dates of travel).
Despite the information being available to Australian authorities it appears that the Departmental officers on two occasions did not adequately engage with the material before them, firstly assuming that it was a typographical error when reviewing the movement record and then again when processing the visa despite there being evidence available on hand that the applicants had Lebanese citizenship.
The family were granted visas on the 22 April 2016.
In determining whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information it is necessary to refer to the criteria by which the delegate assessed the application and any notes accompanying the assessment as there is no decision record, nor as noted above, even a visa grant notice.
The following was included in a case note dated 22 April 2016 on the Department’s ISCE system:
I have carefully considered all of the information available to me at the time of decision, giving appropriate weight to the assessment and the fact that the primary applicant and family have been recognised as refugees by the UNHCR under that organisation's mandate in Lebanon. I am satisfied that:
*The applicants are living outside their home country and are subject to persecution in that country (200.211(1) and 200.221).
*That there are compelling reasons for giving special consideration to granting the applicants permanent Refugee visas (200.222).
*That the permanent settlement of the applicant in Australia would be consistent with the regional and global priorities of the Commonwealth in relation to the permanent settlement of persons in Australia on humanitarian grounds (200.223).
…
I am satisfied that the applicants meet all requirements for grant of subclass 200 Refugee visas.
There is no further information that records the Department’s considerations. Based upon this limited record, relevant to the incorrect information provided are the delegate’s considerations of whether they are subject to persecution (clauses 200.211(1) and 200.221) and that there are compelling reasons for giving special consideration to granting the applicants permanent Refugee visas (Cl. 200.222).

Relevant to these clauses is the question of which country are their cases to be assessed against. Clause 200.211(1) of the Migration Regulations at the time of the application stated, ‘is subject to persecution in the applicant's home country and is living in a country other than the applicant's home country.’
The term ‘home country’ is defined as:
(a) the country of which the person is a citizen; or
(b) if the person is not usually resident in that country, the country of which the person is usually a resident.
The applicants at the time of the decision were citizens of Lebanon and Syria as such the applicants had two home countries.
The representative claims that the term ‘home country’ is best understood as referring to a single country. Even was this to be the case there is no reason then why it would not be appropriate to refer to Lebanon as the applicants’ home country as it is where they most recently resided while holding citizenship.
In conclusion, all five applicants’ visas were considered against the circumstances in Syria because they did not provide information that they held Lebanese citizenship. While information was available to Immigration officers it appears that none engaged with it in detail. Nevertheless, had this information been provided by the applicants openly and transparently then the decision would have been different as the applicants would not have been considered as living ‘outside of their home country’ of Syria but rather as living in their home country of Lebanon.
As such I find that the decision by the delegate is based in large part on the incorrect information. For this reason, I place some weight in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
It is important to consider the circumstances in which the non-compliance occurred not as a snapshot in time but rather the entirety of circumstances that led to the decision to withhold the correct information. In this instance, why they lied regarding their citizenship is tied to their circumstances in Syria and Lebanon leading up to the moment they met with the Australian embassy officials.
I will provide a consolidated summary of what I accept as fact regarding the family’s circumstances in Syria. The war in Syria began in 2011. At this time the first named applicant was working as an [occupation] in the [specified] sector, two children were studying, and the second named applicant was working as [another occupation] and caring for her disabled daughter. By 2013 the frontlines were nearing their suburb in Damascus. Every two or three days they were in the bunker because of artillery fire landing close to their buildings. Friends and neighbours were killed, women were raped, and people were being kidnapped for ransom. In August 2012 their home was hit by two missiles. In November 2012 there was a bombing in their area killing and injuring hundreds.
In the same month the first named applicant was kidnapped and tortured. He was held for 20 days, chained by his wrists and hung from a cross beam. They hit him, left him in his underwear despite being winter and gave him rotten food. He was released after his family paid US$10,000 to the kidnappers. I asked the applicant why he thought they would torture him if they were only after a ransom to which he replied that they had no ethics, their religion was only a façade. All they wanted was the money, so they harmed him to show his family that they were serious.
After being released he spent two months being treated for his wounds including scabies. As soon as he was well enough the family fled Syria. The family spent the next three years in Lebanon. Each described their own challenges.
The first named applicant said that living in Lebanon was difficult, that the Lebanese people treated them disrespectfully and they were discriminated against for being Christian Syrians. He said that his qualifications were not recognised and that he didn’t have the political connections to find work. In a submission the applicants provided photographs of banners that have been strung across streets warning Syrians of curfews specific to them. Representative of these banners are the two below which were translated by the interpreter at the hearing:
·Council fo Ghazia asks all Syrian people resident here to stop travelling from 8pm to 6am
·I have more right to work in this country than you
The first named applicant explained that the decree which granted him Lebanese citizenship is not popular and that it has led to discrimination and a two-tier system where they are not treated as citizens. The applicant claims that his family were living in a country that did not welcome them. The applicant claims that this motivated him to lie which led to the non-compliance.
The second named applicant explained that while she was living in Syria before the war she was employed and able to contribute to the family but she couldn’t do that in Lebanon as she did not have the opportunity for either. She described being treated like Syrians and never as Lebanese citizens. She noted how the Lebanese hated Syrians. She described that while in Lebanon they lived with her sister, a widow with [children], and were dependent upon her for everything as they could not find work. She believes that it was because of their accents and the discrimination against Syrians. The second named applicant was also very concerned about her family’s circumstances particularly her youngest daughter whose illness she claimed was getting worse.
For the third named applicant, the war in Syria meant that his university studies came to an end. He described in the hearing how as the battlelines drew nearer to Damascus his studies ceased and all he could do was sit at home. He described going into the basement when the bombs fell. He described the psychological impact upon him of his father being kidnapped and some friends being killed.
The third named applicant described the living conditions in Lebanon as difficult. He explained how he could not study in a Lebanese university because priority was given to those who had studied in local schools (at the hearing it was explained that this was because schooling in Lebanon is in English, French and Arabic while in Syria only in Arabic). The third named applicant described times when he felt under threat because he was identifiable as a Syrian. He claims to have tried to avoid being out in public for this reason. He noted that on a church wall he saw the words, ‘If Jesus was Syrian, we would hate him.’ He claims that there was regular news coverage of politicians demanding to have citizenship stripped from people who had received it through the 1994 decree. He claims that he could not find work because of his accent, giving the example that restaurant owners would not hire him because customers would not want a Syrian serving them. I asked him if he had sought labouring jobs that would not be dependent upon his accent to which he responded that he had not.
The fourth named applicant described her feelings of isolation because of the way Syrians were treated. She said that when bad things happened, they were blamed on Syrians. She said that her dreams and ambitions were broken. She also described a curfew in some areas that limited the movement of Syrians. It was an ad hoc curfew established by local militia with the nod of approval of the police. This further limited their movements as they feared being identified as Syrian regardless of their citizenship. She described the worsening situation of her sister noting that she could not go to school and so remained at home.
All of the first four named applicants described their concern for the fifth named applicant. As such I will summarise her situation in Lebanon. Lebanon was described as not having any facilities for the disabled. This aligns with country information on the situation for people with disabilities:
There is a systemic lack of provisions for rights, resources, and services for persons with disabilities in Lebanon, due foremost to inaction by the State. As a result, persons with disabilities experience widespread discrimination, marginalisation, exclusion, and violence, at the hands of a range of State and non-State institutions and individuals, in the home and outside. This applies to all areas of their lives. In particular, work and basic services for them are scarce, not accessible, and of poor quality.
The legal framework on the rights of persons with disabilities is limited, and not enforced. Legislation and policies have not embraced a rights-based approach, and tend to exclude disabilities that are not physical from consideration.
Persons with disabilities face adverse political, social, cultural, and economic conditions. This has extremely detrimental effects on their rights, capacities, experiences, and quality of life.
Actors in formal politics have taken little to no action towards the rights of persons with disabilities.
General knowledge, attitudes, and behaviours towards persons with disabilities in Lebanon often rely on charitable or medical approaches to disabilities, rather than social or rights-based ones. Lack of knowledge, prejudice, and stigma against persons with disabilities are common – especially against those with intellectual or mental disabilities. Family caregivers also experience a high burden of care work, which negatively affects persons with disabilities.[3]
[3] Situation of Persons with Disabilities in Lebanon, GSDRC, July 2018 >
The life of the fifth named applicant was described as being miserable and isolated leading to loneliness and depression. She did not go out, she didn’t have any support from the government. She did not develop. This was seen as difficult for her but also for the family.
At the core of the family’s claimed hardship was that despite being citizens of Lebanon they were discriminated against, feared for their safety and could not find work, all because they claimed that the citizenship they had was a second class citizenship. This claim of holding second class citizenship requires further consideration as it conceivably impacts the circumstances in which the non-compliance occurred.
The first and second named applicants provided information on how they obtained their Lebanese citizenship. In the nineties the Syrian army was occupying Lebanon and the situation in Syria itself was bad with widespread poverty. Through their church they heard that the Lebanese government was giving citizenship to foreigners. They understood that the decree which allowed that was politically driven. They were advised that the Lebanese Christians needed Syrian Christians to also obtain Lebanese citizenship as according to the first named applicant Muslims comprised about 80% of the people who obtained the citizenship and Christians only 20%. So, the church organised a bus for them to travel to Lebanon, they were given accommodation for the night, completed the paperwork and then returned the next day.
Relevant country information on the 1994 decree includes:
·The nationality of the people it encompassed became contested and unstable, which prevented them from enjoying a number of rights throughout the review period. One prominent example is that naturalized persons have been unable to correct their records or register marriages and births that occurred before the decree’s issuance; the Court of Cassation deferred resolving these applications until the review has been settled.[4]
- The Council [an administrative review body akin to the Administrative Appeals Tribunal] referred the case to the Ministry of Interior, authorizing it to re-examine the decree in relation to cases where it discerned that nationality was granted wrongfully as a result of fraud and falsification, or in contravention of the Constitution or law.[5]
·In 2004, the supreme committee formed by the Ministry of Interior to investigate the files of the naturalized persons recommended withdrawing the nationality of approximately 1,940 persons (including minors) of more than 150,000 [who were naturalized]. However, no decree to withdraw their nationality was issued at the time, and the case continued to be transferred between the Council of Ministers and the Ministry of Interior for a number of years.[6]
·On October 28, 2011, following the formation of a new committee to restudy the naturalized persons’ files, decrees no. 6690 and 6691 were issued withdrawing nationality in approximately 200 cases who had been naturalized.[7]
[4] 'Manufacturing Precarious Nationality in Lebanon: The Naturalization Decree of 1994', The Legal Agenda, 08 February 2016, 20200122163553
[5] ibid
[6] ibid
[7] ibid
The applicant stated at the hearing that he and his family were not among those whose naturalisation was reviewed.
The applicants submitted to the Department (f.54 of [file number]) a copy of their residency document in Lebanon. I note that the document states their nationality as Syrian not Lebanese. The document records their Syrian identity card. I give some weight to this as supporting the assertion by the applicants that their Lebanese citizenship made them second class citizens and as such, they did not use it.
No independent country information was found nor was any submitted that provided further insight into the social and economic plight specifically of the ‘1994 decree’ citizens. Based upon the available country information and the evidence provided by the applicants I find that there was no legal basis of discrimination. The discrimination the applicants faced was based upon Syrian qualifications not being recognised, their inability to speak English and French and a disliking of Syrians by the Lebanese. I also find that the applicants risked being confused for Syrian refugees which raised the chance of being harmed and as such remained indoors as much as possible.
From within this context the applicants chose to provide incorrect information at the interview. At the hearing the first named applicant explained that after his abduction he was living a terrible life. Once in Lebanon, he heard that some foreign embassies were accepting applications for refugees. He heard about an office that could fill out the forms and apply. So, the agent applied asked if they had Syrian citizenship and IDs. The first named applicant claimed that the agent never asked about having any other citizenship. A few weeks later they received a call from the Australian Embassy in Lebanon. They enquired about living arrangements only. Then again after a while they received a call inviting them to an interview. Just before the interview the children who had been working on their English language skills reviewed the application form and discovered that there was a mistake regarding the citizenship question. The first named applicant said at the hearing that it was as if their minds were blocked, they were focused on a safe way to get out of the situation they were in. They could not think straight and so didn’t consider the option of correcting the information as critically as they should have. He added that he didn’t know at the time that if you had dual citizenship you couldn’t apply.
The first named applicant claimed that two days later the embassy called him and asked him to confirm whether he had ever travelled to Australia as at the interview he had stated that he had not. By confirming to the embassy that he had visited Australia previously in 1998 or 1999 he thought that he had corrected the mistake of not declaring his Lebanese citizenship. He thought that the Embassy officials would have been aware that he had travelled to Australia on a Lebanese passport. He did not explicitly correct the information. During that call he asked the officer if his visa would be rejected. He claims that he was told to wait for their reply.
The statutory declarations submitted by the applicants and the evidence given at the hearing by other family members confirms this narrative of events.
The first named applicant’s response reflects wilful deceit as well as a fear of remaining in their circumstances that may have clouded their judgement. While the applicants were desperate, desperation cannot justify providing incorrect information.
Overall, the relevant circumstances that influenced the non-compliance include the family’s circumstances in Syrian and flight from Syria along with their circumstances in Lebanon. Although the challenges were felt individually, the repercussions would have been borne by the entire family and as such I consider them together (for example, while the fifth named applicant struggled in Lebanon, her situation would have weighed heavily on the other family members.) I note that the applicants were desperate to leave Syria, they had reason to be. The first named applicant had been kidnapped and tortured, family and friends were killed. Their desperation led them to Lebanon, not because they had citizenship but because the border with Jordan was closed and Turkey was too far away. While in Lebanon they felt unwelcomed and found it hard to survive. It is difficult to understand how they did not better leverage their citizenship but considering that they registered with UNHCR as refugees and their Lebanese residency recorded their nationality as Syrian I am satisfied that they saw few options in Lebanon not for want of trying but due to the barriers they faced. An opportunity arose to seek a better life by applying to Australia for a refugee visa, but through this process they did not declare their citizenship of Lebanon. I accept that this initially was inadvertent. The agent did not ask. They did not know that it was important. I also accept their evidence that they deliberately lied during the Embassy interview and withheld information from the Australian embassy officials. I accept the first named applicant’s claim that he believed that he had rectified that matter when he spoke with the embassy official two days later and was asked about his travel to Australia. For the reason of what had driven them to seek asylum in Australia, their situation in Lebanon, their desperation and in turn their state of mind and the half-hearted subsequent attempt to rectify the issue I place substantial weight against cancelling their visas.
The present circumstances of the visa holder
The first named applicant has been assessed as having ‘adjustment anxiety with depression symptoms’ by [a named] [Psychiatrist]. He has fully utilised his Medicare mental health care services to support the mental health challenges he faces including six sessions with a clinical social worker.
The third named applicant is enrolled at [a named] University studying [subject]. He would be unable to continue his studies in Lebanon for the same reasons that he was unable to begin his studies there which was that he can not speak French. She is also married to an Australian and wants to start planning a family.
The fourth named applicant is studying [subject] full time at [another] University. She has met with a counsellor at [that] University regarding her personal circumstances which have created stress in her life. As with her brother she would face difficulties in completing her studies in Lebanon.
The fifth named applicant is legally blind and intellectually disabled. She is [an age] years old girl who attends [a named school], a specialist school for students with additional learning needs. She requires ongoing support for speech therapy which she is receiving in Australia once a week as well as once a fortnight receiving [specific] training and once a week occupational therapy. Once the COVID-19 situation changes she will also start behavioural therapy. This is all funded through NDIS. She would not receive any support in Lebanon. She would return to a state of depression and loneliness without developing her mental or physical abilities.

While the situation of the first and second named applicants in of themselves lends little to weighing the present circumstances in their favour I place substantial weight against cancelling their visa due to them having a daughter who remains dependent upon them and requires considerable care and whose life would be impacted substantially was she to not have the same level of support currently provided by Australia. For the third named applicant I place some weight against cancelling his visas arising from the fact that he would be unable to complete his studies. For the fourth named applicant I place substantial weight against cancelling her visa for the reason that she would be unable to complete her studies as well as that it would cause considerable disruption to her marriage and plans to have children.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicants expressed remorse for having lied and I find have not breached any other obligations. I place little weight against cancelling their visa based upon their remorse and it being a basic expectation that all visa applicants do not breach their obligations.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance. As this is a basic expectation of all visa applicants I place little weight against cancelling the visa in this regard.
The time that has elapsed since the non-compliance
The applicants have spent 4.5 years in Australia. This is a relatively short period of time for the parents but constitutes a large portion of the children’s lives. As such I place limited weight against cancelling the visa for the parents but place some weight against cancelling the children’s visas.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal of any other instances of breaches of the law. As this is a basic expectation of all visa applicants I place little weight against cancelling the visa in this regard.
Any contribution made by the holder to the community.
The third and fourth named applicants have undertaken considerable voluntary work helping migrants and refugees from the Middle East to settle in Australia. They have helped them with university applications, finding work and accommodation. Submissions were received from nine people who recognised the work that these two had done to help them transition into Australian life.
A letter was submitted from [the named] Minister, [of a named] Church. He mentioned the first and second named applicant’s regular participation in church. He also noted that the second named applicant volunteers helping [specified] classes for new arrivals to Australia as well as other ‘ladies events’.
The second named applicant has completed a first aid course and is currently employed with [an employer] as a Personal Care Worker.
The first named applicant volunteers with [a named agency], a distribution centre for non-perishable goods, fresh food and vegetables which was recently provided a grant from [a named] Council to provide support to residents who are facing food shortages. The first named applicant was featured in online news stories about his work including interestingly on [an agency’s] website celebrating Refugee week 2020 despite his visa being cancelled.[8]
Consideration
[8] [Deleted.]
In considering the discretionary elements of these cases I have taken into account the weightings I gave to each that overall weighs against cancelling their visas. But I also place substantial weight in favour of cancelling the visa based upon the applicants having provided incorrect information in the manner described above. On balance though, I find that the lives the [applicants] have created for themselves in Australia, the circumstances that led them to provide incorrect information and the impact that cancelling their visas would have upon the fifth named applicant outweigh the fact they provided incorrect information.
As such the Tribunal has decided that there was non-compliance by the applicants in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visas should not be cancelled.
DECISION
The Tribunal sets aside the five decisions under review and substitutes decisions not to cancel the Subclass 200 (Refugee) visas of the five applicants.
Denis Dragovic
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 3954

1 July 2020

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